Excerpts: Latest filings in ‘Vista Capable’ lawsuit

The lawsuit over Microsoft’s “Windows Vista Capable” marketing program has reached a key juncture. Lawyers for the plaintiffs have formally requested class-action status for the case, seeking to open it up to many more people, and Microsoft last week filed its official opposition to that request. The filings contain some interesting tidbits on both sides.

First, a quick summary for anyone just tuning in: The case revolves around the marketing of Windows XP PCs as “Windows Vista Capable” last holiday season even in cases when they only had the horsepower to run Windows Vista Home Basic. The plaintiffs, two PC buyers, say that was deceptive, because Home Basic doesn’t offer many of Windows Vista’s signature features, such as the Aero Glass interface. They say it’s not a “real” Windows Vista version. Microsoft says Home Basic is a real Windows Vista version, and it says it went to great lengths to make consumers aware of the differences among the different versions. It also says the case doesn’t meet the legal requirements for a class action.

The case touches on key issues involving Windows Vista — specifically, the variations among the different editions, and the steep system requirements for running premium versions of the operating system.

See this story from Monday’s paper for more details. Here’s the plaintiffs’ motion for class certification, PDF, 31 pages, and Microsoft’s opposition, PDF, 30 pages. (Both have been redacted by the lawyers to remove information, such as sales data, that Microsoft considers confidential.)

Among other things, Microsoft cites responses given by the first plaintiff in the case, Dianne Kelley, during a deposition. An excerpt from its filing:

“Although her claim (and that of the proposed class) centers on the allegedly misleading ‘Windows Vista Capable’ sticker, Ms. Kelley did not even see the sticker until long after buying the PC when her sister (calling at the behest of her husband, a lawyer working on this case) asked if her laptop had a ‘Windows Vista Capable’ sticker. … The question (and the sticker) meant nothing to her even then.”

Lawyers for the plaintiffs also cite information gleaned during depositions. Seeking to demonstrate how the “Vista Capable” logo could be a source of confusion for consumers, they point to the apparent confusion of a Microsoft marketing director, Mark Croft. Although Microsoft says “Windows Vista Capable” meant the machine could run a version of Vista, not any version, Croft initially said the opposite in a deposition excerpted in the plaintiffs’ filing. Here’s what he’s quoted as saying when contrasting the terms “capable” and “ready”:

“Capable is a statement — single-word statement — that has an interpretation for many that, in the context of this program, a PC would be able to run any version of the Windows operating system. Ready may have concerns that the PC would run in some improved or better way than — than capable; therefore, the word capable was deemed to be a more fitting word for this program.”

According to the plaintiffs’ filing, after a break in which he spoke with Microsoft’s lawyers, he later clarified his comments to say that capable meant a PC would run a version of Vista, not any version.

The plaintiffs’ lawyer then asked: “Did you ever do any market research — consumer research to determine whether or not the term Windows Vista Capable would cause any consumers to make the very mistake that you just made?” No, they hadn’t, he replied.

The case is being litigated in federal court in Seattle. U.S. District Judge Marsha Pechman will decide whether to certify the suit as a class action. Also see this earlier story about a previous hearing in the case.